Feds Push For Warrantless Cell Phone Tracking

An anonymous reader writes "An article at CNET is reporting on the Obama administration's push for warrantless tracking of the location of cell phones (Verizon Wireless stores location data for one year, for instance). The Justice Department says no warrant is necessary: 'Because wireless carriers regularly generate and retain the records at issue, and because these records provide only a very general indication of a user's whereabouts at certain times in the past, the requested cell-site records do not implicate a Fourth Amendment privacy interest.'"

Comments

Really?

[LaminatorX]

This sounds like a perfectly reasonable thing for carriers to provide UPON BEING SERVED WITH A WARRANT!

But what about the spirit?

[ircmaxell]

What about the spirit of the 4th amendment? Sure, it may not violate the amendment as it's worded, but was that the intent of it when it was put in?

We're getting into very precarious situations here. With technology advancing, we're pushing the letter of the law as far as it can go, even when it isn't really applicable. Don't forget, the Constitution was written over 200 years ago. We need to stop looking how the letter of the laws apply to today's world, and start looking into the spirit of the laws.

Re:But what about the spirit?

[Thoreauly Nuts]

What about the spirit of the 4th amendment? Sure, it may not violate the amendment as it's worded, but was that the intent of it when it was put in?

The American Constitution is dead. It's an outdated document that has been viciously exploited by the frauds who claim to represent us. What we need to do is to call a Constitutional Convention and rewrite the thing with a clearer and MUCH expanded Bill of Rights.

In fact, I think that such a convention should be mandatory about every 50 years and there should be very clear rules that each iteration must always err in favor of the rights of the people and never increase the power of government. In fact, it should be mandatory that any increases in power that have occurred in the interim be removed at each convention.

Re:But what about the spirit?

[unix1]

What about the spirit of the 4th amendment? Sure, it may not violate the amendment as it's worded, but was that the intent of it when it was put in?

But it DOES violate. From their own argument:

"a customer's Fourth Amendment rights are not violated when the phone company reveals to the government its own records"

Just because there's a 3rd party (phone company) involved doesn't mean 4th amendment goes out the window. The 4th amendment doesn't have an asterisk that says "(*) doesn't apply when facilitated by a 3rd party." The right is there to protect people from government's abuse of power. The issue is what the government can and cannot do, regardless of whether they are able to hire/convince a 3rd party to do it for them.

In fact, if the above argument stands as is, we can freely plug in other variables in that statement:

a customer's Fourth Amendment rights are not violated when:

- phone company reveals to the government its own customer call detail records
- hotels reveal to the government their guest check-in/out records
- credit card companies reveal to the government their customer purchase records
- libraries reveal to the government their book lending records
- dry cleaners reveal to the government their customer records
- etc.

Where does it stop? And all this without a warrant or a probable cause? How does it not violate?

Re:But what about the spirit?

[AthleteMusicianNerd]

It is not outdated. Politicians take an oath to uphold the constitution, but don't. They should be thrown in jail. There is no interpretation of it, it's very easy to read and understand. The Founding Fathers were well aware of the consequences of the actions we're taking in government now because they lived through it in Britain. That's why you hear quotes from very smart men such as Benjamin Franklin saying "If we restrict liberty to attain security we will lose them both." We've seen that actually play out since Sept. 11th. Or other ones like "Remember that time is money." which also continues to hold true.
Just because there is new technology, does not change the ways laws should be enforced. A cell phone conversation is no different from a land line conversation which is no different from sending a letter. If you intercept a letter, it's a violation of privacy just as it would be to listen to someone's cell phone conversation. The government would like people to believe that there's a difference so they can continue on their malicious ways of fascism.

Re:Well, in fairness

[venom85]

So then I assume you also would say that if I have nothing to hide, I shouldn't mind the police tearing my house apart looking for something that may or may not be there? If I have nothing to hide, I shouldn't mind being searched every time I enter or leave a building? I shouldn't mind being spied on at all times during my daily life? That's all ridiculous. Just because I don't want the Feds to know where I am every waking second doesn't mean I'm doing anything wrong. I just like my privacy, and they're interfering with that. It's not like it's anything new in this country (USA), but it's still wrong. Plain and simple.

Re:What happened to warrants?

[Itninja]

They only need a warrant if the data owner demands one before compliance. The thing is, the large telecoms are lapdogs to the federal government. They need the government's blessing to make a profit so are all to willing to turn over your records upon request.

Re:Well, in fairness

[drDugan]

This argument, while never voiced due to its absurdity seems the most common rationale for removing privacy protections.

The comment not a joke at all. It was satire of the recent Google CEO comment: If you have something that you dont want anyone to know, maybe you shouldn't be doing it in the first place, said Schmidt. You know, kind of like calling a failed politician, "Fucking Retarded" (you're brilliant, Stephen). See? Satire.

Re:Well, in fairness

[Locke2005]

Seeing as how the feds are not above blackmail, e.g. "Help us nail this guy or we'll tell your wife where you were last Saturday," I'd have to agree with you. The reason we require warrants is to attempt to prevent abuses of authority.

I thought Bush was the fascist

[WCMI92]

Looks like the Obama administration is full of Hope and Change.

No way in hell, even under the patriot act that this is legal to do to US citizens.

Then again, Obama has little faith in the Constitution, he considers it a document of "negative liberty" (see his NPR interview) that unfortunately tells he and his government lots of stuff (like this) they aren't allowed to do.

Shocked by Obama? This is who he is...

[inthealpine]

I'm sure everyone that hated Bush is OK with Obama doing this. After all he is a kinder genteeler constitution shredder... From the January 18, 2001, broadcast of the WBEZ's Odyssey program, "The Court and Civil Rights": "[...T]he Constitution is a charter of negative liberties -- says what the states can't do to you, says what the federal government can't do to you, but it doesn't say what the federal government or the state government must do on your behalf, and that hasn't shifted." http://mediamatters.org/research/200810280021 The constitution was meant to restrict the government from taking more and more control. Obama's vision is a constitution that has limitless government so said government can 'do things on your behalf', as though the government knew best.

Re:Hope and Change, eh?

[Malk-a-mite]

Anonymous Troll writes:
"I guarantee if this were Bush wanting something similar, the left would be screaming bloody murder at the mere THOUGHT of it. "

... reading fundamentals works for me.

FTFA:
"Those claims have alarmed the ACLU and other civil liberties groups, which have opposed the Justice Department's request and plan to tell the U.S. Third Circuit Court of Appeals in Philadelphia that Americans' privacy deserves more protection and judicial oversight than what the administration has proposed. "

Gasp! Shock! Amazement!
People who don't like something under one administration - might also not like it under another!

Re:Where in the Constitution?

[ari_j]

You are correct, as far as the federal government goes. The state governments were not similarly limited except where the Constitution says they were to be. That has always been open to interpretation by the courts, with bizarre results such as the things that explicitly refer to Congress being imputed to the states long before the things that are worded in outright "nobody can do this" terms were. Classic example: First Amendment says 'Congress' but has long been applied to the states through the Fourteenth Amendment. Second Amendment says 'shall not be infringed' by anyone, but is still up in the air.

The problem as far as the federal government goes is the commerce clause taken together with rational basis review. If Congress passes a law that says 'Whereas interstate commerce is affected by the lederhosen industry, all citizens are required to wear lederhosen on Tuesdays. Violation is a felony punishable by five years in federal pound-me-in-the-ass prison.', that's enough to say that they were exercising their power under the Interstate Commerce Clause. Rational basis review means that a court won't overturn a commerce clause-based law if there is any rational way that the law relates to interstate commerce. And that includes enforcement when the actual act had nothing to do with interstate commerce.

For instance, a federal law that fixes grain prices will result in subsistence farmers being punished for violating it. (True story.) A federal law that says machine guns affect interstate commerce can be used to punish you for building a machine gun out of scrap metal even if none of it ever crossed state lines. (True story.) There are very few exceptions where the Supreme Court (after FDR and the New Deal) has thrown out a law for overstepping the authority of Congress under the commerce clause.

Long story short: Congress is allowed to do anything it wants, because everything has some effect on interstate commerce.

Re:Have a problem with this?

[oneTheory]

I'd mod you up if I could. Partisan hacks on both sides try to tell you that their party will do it right next time. Liars! No president or legislators from either party have reined in government powers in recent history.

I liken America to a child with 2 abusive parents. They each play off the other to win the child over then proceed to beat the crap out of them. Then the other parent comes to the child's rescue with candy and toys, telling them they'll be good to them, back and forth never changing their ways. Are we really this stupid?

Re:Where in the Constitution?

[ari_j]

Sure. Congress can, under the interstate commerce clause, regulate the amount of wheat you grow to feed your own chickens. Wickard v. Filburn, 317 U.S. 111 (1942).

Congress can criminalize, under the interstate commerce clause, mere possession of a machine gun that has never itself been in interstate commerce. United States v. Stewart, which the 9th Circuit was ordered by the Supreme Court to reconsider in light of Gonzales v. Raich, 545 U.S. 1 (2005), which held that Congress can criminalize marijuana that has never been in interstate commerce because locally grown cannabis changes the supply and demand for the product in the interstate trade. The 9th Circuit ended up reinstating the machine gun guy's conviction even though he built the gun from scratch without crossing state lines.

Re:Well, in fairness

[Anonymous Coward]

Google : "Slippery slope"

We need to avoid these circular fallacies for eroding privacy requirements, such as:

"If you don't want people to know, you shouldn't do it" or "If you want privacy, you're probably a criminal"

Or my personal favorite, "If you're not doing anything wrong, you can't get in trouble".

Bullsh. You let people start talking like that, and pretty soon we're all goose-stepping towards Auschwitz.

This erosion of rights has got to be fought tooth and nail, now. Once we go warrant-free, there's no going back.